While most companies are aware of the liability they may face if they violate the FMLA, a recent decision from the Eleventh Circuit serves as a reminder of just how important it is for employers to train human resources personnel, as well as managers and supervisors, on how to properly handle leave requests.
Executive Summary: While most companies are aware of the liability they may face if they violate the FMLA, a recent decision from the Eleventh Circuit serves as a reminder of just how important it is for employers to train human resources personnel, as well as managers and supervisors, on how to properly handle leave requests. In Dawkins v. Fulton County Gov't, (11th Cir. Sept. 30, 2013), an employee sought to bring a claim of FMLA retaliation based on a manager's one word response of "Approved" to an e-mail requesting both emergency and FMLA leave, even though she did not comply with the employer's medical certification requirements.
How can employees bring such claims if they are not otherwise eligible for FMLA leave? They can do so under a theory known as federal common law equitable estoppel. Although the Eleventh Circuit in Dawkins again declined to decide the question of whether federal common law equitable estoppel applies to FMLA claims, the Second, Fifth, Sixth and Eighth Circuits have held that it does. Like the Eleventh Circuit, the First, Seventh, Ninth and Tenth Circuits have considered, but ultimately refused to issue a determination on, its applicability to FMLA employment discrimination cases, finding instead that the elements of equitable estoppel had not been met in the cases before them.
Background of Dawkins v. Fulton County Gov't: The plaintiff, Dawkins, sent an e-mail entitled "FMLA" requesting emergency leave to assist her father in dealing with her terminally ill uncle and requested the employer send her a FMLA packet. Dawkin's manager replied "Approved," but did not clarify whether he was approving the leave or approving it as FMLA leave. Like many employers, Fulton County's FMLA policy required an employee to complete an application and obtain a written certification from a health care provider before FMLA leave could be approved. The decision does not state whether the employer ever sent Dawkins the requested FMLA packet; however, she never returned a packet to the employer.
Four days after receiving Dawkins' e-mail, Fulton County rescinded her temporary reassignment to a higher paid position. When Dawkins returned to work, she was reinstated to the position she held prior to the temporary reassignment. Although Dawkins did not complain about this at the time, she later filed a lawsuit alleging FMLA retaliation.
To prove FMLA retaliation, a plaintiff must show that her employer intentionally discriminated against her for exercising an FMLA right. Recognizing that the FMLA did not cover her absence, Dawkins did not contend that she exercised an FMLA right. Rather, she argued her FMLA retaliation claim was meritorious, despite being outside the statute's protection, because the employer was equitably estopped from denying her eligibility for FMLA leave based on her managers' "Approved" e-mail.
Elements of Equitable Estoppel: Courts apply different versions of the estoppel rule. The Eleventh Circuit set out the following elements to prove a federal common law equitable estoppel claim:
- the party to be estopped (in Dawkins, the employer) misrepresented material facts;
- the party to be estopped was aware of the true facts;
- the party to be estopped intended that the misrepresentation be acted on or had reason to believe the party asserting the estoppel (Dawkins) would rely on it;
- the party asserting the estoppel did not know, nor should it have known, the true facts; and
- the party asserting the estoppel reasonably and detrimentally relied on the misrepresentation.
Other federal appeals courts that have recognized equitable estoppel in FMLA cases eliminate at least one element from the above list. Specifically, they do not require the party asserting estoppel to show that the other party was aware of the "true facts" and/or that the other party intended for the statement to be relied upon.
In Dawkins, the Eleventh Circuit affirmed the lower court's decision granting summary judgment in favor of the employer. Although the court explicitly stated that it was not deciding whether common law equitable estoppel applies to FMLA claims, the court assumed for the sake of argument that it does apply and found that Dawkins failed to establish that she detrimentally relied on the manager's Approval e-mail. The court noted that Dawkins, a Georgia resident, had already decided she would leave work and go to Florida prior to sending her request for leave, since she requested the FMLA packet be mailed to her in Florida. The court further held that even if Dawkins could show that her manager misrepresented her FMLA eligibility and that she relied on this misrepresentation, such reliance would have been unreasonable. Evidence showed that Dawkins had previously taken FMLA leave and admitted that she was aware her employer required medical certification before determining that leave was FMLA eligible. Dawkins also demonstrated her awareness of this policy in her e-mail when she requested that the FMLA packet be mailed to her in Florida.
Other Examples of Estoppel Claims: While not all federal appeals courts recognize estoppel's applicability to FMLA cases, employers should be aware of the potential for such claims and take steps to avoid them, since it is not clear how courts will rule if the plaintiff before them can establish the elements of equitable estoppel. The scenarios listed below are based on other court cases and are by no means exhaustive of the types of situations that may give rise to an equitable estoppel claim.
- Company miscalculates number of employees in approving FMLA leave request: In this scenario, an employee applies for FMLA leave, which the employer grants. Upon returning to work, the employee is terminated and files a lawsuit alleging FMLA violations. The employer asserts an affirmative defense arguing that the employee was not entitled to FMLA protection because the company did not have the requisite 50 employees within 75 miles of the facility to which the employee was assigned. The employer may be estopped from making such an argument if, for example, the employee can show that he relied on the erroneous representation that he was entitled to FMLA leave by pointing to some action or statement indicating that the decision to have a medical procedure was contingent on his understanding of his FMLA status. Evidence that raises an inference of such contingency may be sufficient – for example, a record that the employee inquired as to his rights, asked for written confirmation of the leave arrangement, or changed his behavior after being told he was eligible.
- Company indicates it will give employee more than the 12 weeks of leave covered under the FMLA: In this scenario, an employer terminates an employee after she fails to come to work following twelve weeks of FMLA leave. Prior to the termination, however, the employer told the employee that her entire thirty-four weeks of requested leave, far more than the twelve-week statutory maximum, qualified as FMLA leave. When the employee files an FMLA claim, the employer asserts as an affirmative defense that the employee's FMLA leave had expired at the time of the termination since the FMLA only requires the employer to provide twelve weeks of covered leave. The employer could be estopped from asserting this as an affirmative defense because of its prior representations and the employee's reasonable and detrimental reliance on those representations.
- Employer's failure to inform employee of FMLA protections and eligibility requirements: In this scenario, an employee requests medical leave, which the employer approves. The employee does not request, and the company does not mention, FMLA leave or whether the leave would be covered under the FMLA. Subsequently, the employee is terminated. Employee sues, and the employer argues that the employee did not satisfy the FMLA's minimum-hours eligibility requirement. In some instances an employer could be estopped from raising an eligibility defense due to its failure to post the required FMLA eligibility notice. Employers covered by the FMLA are under a legal duty to inform their employees of the FMLA's protections and what employees must do to qualify for those protections. If a company fails to post the required notices or include the required information in its employee manual, it could be argued that the company failed to fulfill this legal duty and has deprived the employee of the opportunity to take FMLA leave.
Employers' Bottom Line: Employers should closely review their FMLA policies and procedures and ensure that they clearly state that leave requests can only be approved as FMLA qualifying leave by certain individuals within the company. Employers should also make sure any qualification requirements imposed on employees requesting FMLA leave, such as medical certifications, are specifically set out in their policies and procedures. Finally, and most importantly to avoid an equitable estoppel claim, all members of management should be trained on the company's policies and procedures and routinely reminded of how to properly handle such leave requests.
If you have any questions regarding this Alert, please contact the author, Michelle Tatum, firstname.lastname@example.org, who is an attorney in our Jacksonville office, or the FordHarrison attorney with whom you usually work.